What Is Copyright?

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.  Copyright protection is available to both published and unpublished works.

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• reproduce the work in copies or phonorecords

• prepare derivative works based upon the work

• distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending

• perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

• display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and  pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work

• perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission

Authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.  See further information, see Circular 40, Copyright Registration for Works of the Visual Arts.

from the Copyright Office (Circular 1 rev: 08 ⁄ 2010)

Where to File Complaint for Copyright Infringement?

Federal court only.

Scope of Copyright Protection Extends to Tangible Expressions of Ideas, Not the Ideas Themselves.

(C) Principle I: Copyright Does Not Cover Ideas

Copyrights cover only the tangible expression of ideas, not the ideas themselves.  To protect ideas, see Patents and Intellectual Property.

Instead, copyright law protects expressions of ideas.

Copyright Protection vs. Patent Rights I.

For a discussion of rights to copyrights and patents, go to here.  Patents protect new, un-obvious ideas, even for independent inventors.  Copyright law protects each expression of an idea, even if the idea is old.

How do I transfer ownership of a copyright?

Put it writing.  17 U.S.C. Section 204.

Some level of creativity is required.

Even copied open source software which is selected, ordered, and arranged may be copyrighted.  Jacobsen v. Katzer 93 USPQ2d 1236 (N.D.Cal. 2009).  Blank form are not generally copyrightable because headings are obvious.

(C) — Section 504(c)(2) Copyright Notice.

A copyright notice under Section 504(c)(2) disallows the innocent user defense, as long as the copyright notice appears prominently.

Benefits of Federal Registration of Copyrighted Works.

Copyright registration is voluntary and may be done at any time the work is still protected by copyright.  The registration process permits the owner exclusive rights in the copyrighted work.  Registration is available for both published and unpublished works.  The copyright owner should register a work because copyright registration is a prerequisite for bringing a copyright infringement lawsuit.

A federal registration makes the owner “statutory damages” and “legal costs and attorneys’ fees” from a copyright infringer.  In federal court, registration is a precondition for filing a lawsuit for infringement.  But registration is not required for subject matter jurisdiction.  Reed Elsevier Inc. v. Munchnick 130 S.Ct. 1237 (2010).

A timely registration is one that takes place either before an infringement taking place or within three months from the publication date of the work. If the infringement occurs prior to the effective date of copyright registration or after the three-month grace period then the copyright owner will not be entitled to receive statutory damages and legal costs and attorneys’ fees. The effective date of copyright registration is the date when the Copyright Office receives the complete registration application that consists of the application, fee and deposit copies.

Statutory damages negates the burden on the copyright owner to prove actual damages.  The amount of statutory damages is discretionary and will depend upon how willful and harmful the infringement was .  Certificate of Registration serves as prima facie evidence that the work is original and is owned by the registrant of the copyrighted work.  Registration permits the copyright owner to send a “cease and desist letter” with the knowledge that the validity of originality and ownership will be presumed, statutory damages may be awarded, and legal costs and attorneys’ fees may be recovered.

Hence, register the copyrightable work immediately upon its creation or publication.

Oracle America’s copyright claims against Sun:

Oracle America’s copyright claims against Sun:

COUNT VIII
(Copyright Infringement)

37. Oracle America hereby restates and realleges the allegations set forth in paragraphs 1 through 15 above and incorporates them by reference.

38. The Java platform contains a substantial amount of original material (including without limitation code, specifications, documentation and other materials) that is copyrightable subject matter under the Copyright Act, 17 U.S.C. § 101 et seq.

39. Without consent, authorization, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America’s copyrighted work, portions thereof, or derivative works and continues to do so. Google’s Android infringes Oracle America’s copyrights in Java and Google is not licensed to do so.

40. On information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America’s copyrightable works, and works derived therefrom.

41. On information and belief, Google’s direct and induced infringements are and have been knowing and willful.

42. By this unlawful copying, use, and distribution, Google has violated Oracle America’s exclusive rights under 17 U.S.C. § 106.

43. Google has realized unjust profits, gains and advantages as a proximate result of its infringement.

44. Google will continue to realize unjust profits, gains and advantages as a proximate result of its infringement as long as such infringement is permitted to continue.

45. Oracle America is entitled to an injunction restraining Google from engaging in any further such acts in violation of the United States copyright laws. Unless Google is enjoined and prohibited from infringing Oracle America’s copyrights, inducing others to infringe Oracle America’s copyrights, and unless all infringing products and advertising materials are seized, Google will continue to intentionally infringe and induce infringement of Oracle America’s registered copyrights.

46. As a direct and proximate result of Google’s direct and indirect willful copyright infringement, Oracle America has suffered, and will continue to suffer, monetary loss to its business, reputation, and goodwill. Oracle America is entitled  to recover from Google, in amounts to be determined at trial, the damages sustained and will sustain, and any gains, profits, and advantages obtained by Google as a result of Google’s acts of infringement and Google’s use and publication of the copied materials.

DMCA: Digital Millenium Copyright Act.

Section 1201(a)(1)(A) provides that no person shall circumvent a technological measure
that effectively controls access to a work protected under this title.

For example, a purchaser of software cannot use decryption software to obtain access to original software and avoid technological measures.  This is a violation of the Section 1201 anti-circumvention provision of the DMCA. 17 U.S.C. 1201(a)(1).

Section 1201(a)(2) prohibits the manufacture, importation, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that meets one of three criteria, including the following:
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
17 U.S.C. 1201(a)(2); see also 17 U.S.C. 1201(b). Section 1201(b) is very similar to Section 1201(a)(2). But (a)(2) focuses on effectively controlling access and (b) focuses on effectively protecting a right of a copyright owner.